Orders v. Stotts Brief in Opposition

    No. 82-204

1st th e

î ujirpmp dmtrt nf tljr Mnttpii BtnUs
O ctober T erm , 1982

11. L . O rders, cl al.,

v.
Petitioners,

Carl W. S totts, et al., and 
M em ph is  F ire D epartm ent , et al.,

Respondents.

ON P E TIT IO N  FOR W R IT  OF CERTIORARI 
TO T H E  U N ITED  STATES COURT OF APPEALS 

FOR T H E  S IX T H  CIRCU IT

BRIEF IN OPPOSITION

T hom as M. D an ie l*
Cox &  F ields 

707 Adams
Memphis, Tennessee 38105 
(901) 525-8601

J ack  G reenberg 
O. P eter S herwood 
Clyde E . M u rph y  
R onald L . E lias 

Suite 2030 
10 Columbus Circle 
New York, New York 10019

Attorneys for Respondents
* Counsel of Record



TABLE OF CONTENTS
Page

TABLE OF AUTHORITIES .................. i

STATEMENT OF THE CASE .................  1

ARGUMENT: REASONS FOR DENYING THE WRIT 4
I. The Sixth Circuit's Holding 

Is Consistent With The Decisions Of This Court and 
with The Decisions of Other 
Circuits .................   5

CONCLUSION ............................ 10



TABLE OF AUTHORITIES
Cases: Pa9.e
Allen Calculators, Inc. v.National Cash Register 

Co., 322 U.S. 137, 142
(1944) .... ..................  9

City of St. Louis v. United
States, 452 U.S. 938 (1981).... 6

Commonwealth v. Rizzo, 530 
F. 2d 501 (3d Cir.) 
cert, denied sub. nom.Fire Officers Union v. Rizzo,
426 U.S. 921 ( 1976) ........... 5

Detroit Police Officers Assoc, 
v. Young, 608 F.2d 671 (6th Cir. 1979) cert, denied,
452 U.S. 938 ( 1981) ...........  7

Edmondson v. State of Nebraska,
383 F.2d 123, 128 (8th Cir.
1967) .......................... 9

Farmland Irrigation Co. v.
Dolplmaier, 220 F.2d 247
(9th Cir. 1955) ................ 9

Firebird Society v. Bd. of Fire 
Commissioners, 66 F.R.D. 457 
(D. Conn.), aff'd, 515 F.2d 
504 (2nd Cir.), cert. denied,
432 U.S. 867 (1975) ............ 6

Firefighters Institute v. City of
St. Louis, 616 F.2d 350 (8th Cir.
1980), cert, denied sub. nom.City of ST. Louis v. United
States ......................... ^

l



Fire Officers Union v. Rizzo,
426 U.S. 921 (1976) ............ 5

FMC Corp. v. Keizer Equip. Co.,
433 F.2d 654 (6th Cir. 1970) .... 9

Hawaii-Pacific Venture Capital 
Corp. v. Rothbard, 564 F. 2d 1343 (9th Cir. 1977) ............ 9

Korioth v. Briscoe, 523 F.2d 
1271, 1278 n. 24 (5th Cir.
1975) ......... ............. . 9

Martin v. Kalvar Corp., 411 
F.2d 552, 553 (5th Cir.

Page

Mendenhall v. Allen, 346 F.2d
326, 328 (7th Cir. 1965) ....... 9

Philadelphia Elec. Co. v.
Westinghouse Elec. Corp.,
308 F.2d 865, 861 (3d Cir.1962) cert. denied, 372
U.S. 936 ........................ 8

Reich v. Webb, 336 F.2d 1353 
(9th Cir. 1964), cert.denied, 380 U.S. 915 ............ 9

Stotts v. Memphis Fire
Department, 679 F.2d 541,
546-560 (6th Cir. 1982) ......... 4

Talbert v. Richmond, 648 F.2d 
925 (4th Cir. 1981), cert. 
denied, 50 U.S.L.W. 3547 (Man. 11, 1982) ................  7

ii



Page
Union Cent. Life Ins. Co. v.

Hamilton Steel Prods. Inc.,
374 F.2d 820, 824 (7th
Cir. 1967) ..................   9

United Steelworkers v. Weber,
443 U.S. 193 (19-79) ...........  6

Woburn Decreasing Co. of New 
'Jersey v. Spencer Kellogg & Sons, Inc., 3 F.R.D. 7,
. 10 (W.D.N.Y. 1943) ............  9

Statutes:
28 C.F.R. 50.14 .................... 3
42 U.S.C. § 2000e et seg.,

Title VII of the Civil Rights Act of 1964, as
amended ....................... passim

iii



IN THE
SUPREME COURT OF THE UNITED STATES 

October Term, 1982 
No. 82-204

D. L. ORDERS, et al.,
Petitioners, 

v.
CARL. W. STOTTS, et al., and MEMPHIS FIRE DEPARTMENT, et al.,

Respondents.

ON PETITION FOR WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 

FOR THE SIXTH CIRCUIT

BRIEF IN OPPOSITION

STATEMENT OF THE CASE 
This case concerns the attempt of eleven 

proposed intervenors to delay and otherwise 
prevent the implementation of a consent 
decree, and whether the district court's 
opinion denying that intervention was an abuse
of discretion



2

On February 16, 1977, respondent Carl W. 
Stotts filed a class action lawsuit challeng­
ing the hiring and promotion policies of the 
City of Memphis Fire Department as racially 
discriminatory- Following three years of 
discovery and negotiations, the lawsuit was 
settled by the entry of a consent decree. The 
decree was preliminarily approved and subse­
quently posted for comment on April 25, 1980. 
Neither class members nor members of the 
firefighter's union, filed objections to the 
decree. On May 12, 1980, eleven non-minority 
firefighters filed a motion to intervene, 
objecting to the decree's minority promotion 
goals.

On May 16, 1980 the district court
conducted a hearing to consider the motion to 
intervene. Following that hearing the court 
rejected the alternative remedial action 
proffered by the intervenors, and ruled that 
the decree was reasonable. Additionally, the 
court denied the motion to intervene on 
the ground that it was untimely.



3

The promotional provision objected to by
the white firefighters is as follows:

8. Promotion: To insure as
quickly as practicable the attainment of its long range goal, the City agrees to 
the following interim goals, subject to 
the availability of qualified applicants:

(a) The City adopts the goal of 
promoting black applicants to 
positions above the rank of private 
or other entry level job classifica­tion in proportion to their represen­
tation in the qualified applicant pool for each uniformed rank 
or civil service classification.The parties agree to a goal of 
promoting blacks in the proportion of at least 20% for each civil 
service classification or uniformed rank as measured on an annual basis; 
the parties recognize that the number of blacks qualified for 
a particular job rank or classifica­
tion may be a relevant factor in measuring the City's compliance with 
these goals. Nothing in this 
paragraph or Decree should be 
construed in such a way to require the promotion of the unqualified or 
the promotion of the less-qualified 
over the more qualified as deter­mined by standards as set forth in 
the Uniform Guidelines on Employee 
Selection Procedures, 28 C.F.R.
50.14.



4

1/ 2/Pet. App. 52-53— '—

REASONS FOR DENYING THE WRIT 
The judgment below affirmed the district 

court's denial of intervention by white 
firefighters objecting to a temporary promo­
tional goal as part of a comprehensive consent 
decree entered into on May 17, 1980. The
ruling below, therefore, presents the follow-

_1/ "Pet. App." refers to the separately 
presented appendix filed by the petitioners. The history of this litigation is also found 
in the companion case Stotts v. Memphis Fire Department, 679 F. 2d 541, 546-560 (6th Cir,
1982) .
2/ The long term goal of the Consent Decree 
is "to raise the black representation of each job classification in the fire depart­
ment to levels approximating the black 
proportion of the civilian labor force 
in Shelby County." Pet. App. 50-51. This 
is the same goal as contained in a 1974 
consent decree between the City of Memphis 
and the United States 'Justice Department. 
Stotts, supra, 679 F. 2d at 571. In 1 979 ,
blacks constituted between 33 and 37 percent 
of the Memphis population, yet the Fire 
Department was only 10 percent black and 
blacks were virtually excluded in super­
visory ranks. See hiring and promotional data, 679 F.2d 550, 578-79.



5

ing question:
Whether the district court abused 

its discretion in denying intervention 
by eleven white firefighters to attack 
a temporary promotional goal for black employees in the the Memphis Fire 
Department?

I. The Sixth Circuit's Holding Is Consistent
with The Decisions of This Court and with
The Decisions of Other Circuits.
The Court of Appeals has written an 

extensive opinion that fully considers all the 
factors weighed by the district court in 
denying intervention and approving the promo­
tional goal as reasonable. This Court has 
denied review to white firefighters and their 
representatives seeking to intervene in 
remedial proceedings where goals were ordered 
for black employees. See, Commonwealth v. 
Rizzo, 530 F. 2d 501 (3d Cir.), cert, denied
sub. nom. Fire Officers Union v. Rizzo, 
426 U.S. 921 (1976). Indeed, review has been
denied in cases where similar promotional 
goals have been adopted as part of the reme­



6

dial scheme in correcting past discrimina­
tion in municipal fire departments. See 
Firefighters Institute v. City of St. Louis, 
616 F.2d 350 (8th Cir. 1980), cert. denied 
sub. nom., City of St. Louis v. United States, 
452 U.S. 938 (1981) (promotion ratio of one 
black firefighter for each two white fire­
fighters) ; Firebird Society v. Bd. of Fire 
Commissioners, 66 F.R.D. 457 (D. Conn.), 
aff'd, 515 F.2d 504 (2nd Cir.), cert. denied, 
432 U.S. 867 (1975) (7 of 28 lieutenant 
positions were designated for blacks). White 
intervenors and/or employee unions partici­
pated in the liability and remedy stages of 
litigation in both of these cases and were 
unable to provide alternatives to numerical 
goals.

Petitioners also argue that the promo­
tional goal conflicts with this Court's ruling 
in United Steelworkers v. Weber, 443 U.S. 193
(1979), because it necessarily infringes upon



7

the promotional opportunities of white 
employees. This argument is unpersuasive in 
that post-Weber voluntary affirmative action 
programs in cities with significant minority 
populations have been approved by appellate 
courts and review has been denied by this 
Court. Detroit Police Officers Assoc, v. 
Young, 608 F.2d 671 (6th Cir. 1979), cert. 
denied, 452 U.S. 938 (1981); Talbert v.
Richmond, 648 F.2d 925 (4th Cir. 1981), cert.

3/denied, 50 U.S.L.W. 3547 ('January 11, 1982).

3/ The district court and the court of appeals fully considered the Weber standards 
and determined that the decree was proper:

The decree was reasonably related 
to correcting the underutilization of minorities in the Memphis Fire Department. The decree did not 
require the discharge of non-minority employees and only encompassed 
qualified minorities. Moreover, the decree is temporary and does not 
constitute an absolute bar to the advancement of non-minorities. More 
importantly, the court has retained 
jurisdiction to effectuate the 
purposes of the decree while not 
unduly trammeling the interests of



8

Clearly the district court did not abuse its 
discretion in denying intervention to whites 
who challenge a reasonable consent decree that 
comports with standards approved by this Court 
and the lower circuits for voluntary affirma­
tive action.

Moreover the district court here neither 
erroneously denied nor abused its discretion 
in denying the petitioners' motion to inter- 
vene. Philadelphia Elec. Co. v. Westinghouse

3/ continued
of non-minorities.

679 F.2d at 556.
Between 'July 1980 and 'June 1982, 72 promotions 
were made in the Fire Department with only 4 promotions received by blacks because the 
promotional register was depleted of qualified 
blacks at that time. On 'June 29, 1982, the 
district court ordered the Fire Department to 
promote the First black to the rank of deputy 
chief and one black to district chief in 
addition to 7 other black promotions. Pet. App. 89-94. A total of 33 promotions were 
made as a result of that order with 9 awarded to blacks. For the two year period from 'July 
1980 to ’July 1982, therefore, blacks received 
13 of 105 promotions or 12.4%.



9

Elec. Corp. , 308 F. 2d 865, 861 ( 3rd Cir.
1962), cert, denied, 372 U.S. 936; Korioth v.
Briscoe, 523 F.2d 1271, 1278 n. 24 (5th Cir. 
1975); Martin v.. Kalvar Corp., 411 F.2d 552, 
553 (5th Cir. 1969); FMC Corp. v. Keizer 
Equip. Co. , 433 F. 2d 6 54 (6 th Cir. 1970);
Union Cent. Life Ins. Co. v. Hamilton Steel
Prods. Inc. , 374 F . 2d 820, 824 (7th Cir.
1967); Mendenhall v. Allen, 346 F.2d 326, 328 
(7th Cir. 1965); Edmondson v. State of 
Nebraska, 383 F.2d 123, 128 (8th Cir. 1967);
Hawaii-Pacific Venture Capital Corp. v. 
Rothbard, 564 F.2d 1343 (9th Cir. 1977);
Farmland Irrigation Co. v. Dolplmaier, 220 
F.2d 247 (9th Cir. 1955); Reich v. Webb, 336 
F. 2d 1353 (9th Cir. 1964), cert, denied, 380 
U.S. 915. See also, Allen Calculators, Inc. 
v. National Cash Register Co., 322 U.S. 137, 
142 (1944); Woburn Decreasing Co. of New
'Jersey v. Spencer Kellogg & Sons, Inc. , 3
F.R.D. 7, 10 (W.D.N.Y. 1943).



10 -

CONCLUSION

for
For the foregoing reasons, the
writ of certiorari should be

petition 
denied.

Respectfully submitted,

THOMAS M. DANIEL*
RICHARD B. FIELDS 
COX & FIELDS 

707 Adams
Memphis, Tennessee 38105 
(901) 525-8601

'JACK GREENBERG 
O. PETER SHERWOOD 
CLYDE E. MURPHY 
RONALD L. ELLIS 

Suite 2030 
10 Columbus Circle New York, New York 10019

Attorneys for Respondents
♦Counsel of Record



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